United States District Court, M.D. Florida, Jacksonville Division
KYREE L. PEREZ, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondents.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
Kyree L. Perez, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody. Doc. 1. Petitioner is proceeding on an Amended
Petition. Doc. 11. He challenges a state court (Duval County,
Florida) judgment of conviction for attempted second degree
murder and possession of a firearm by a juvenile delinquent
found to have committed a felony act. He is currently serving
an aggregate fifty-five-year term of incarceration. Doc. 11
at 1. Respondents filed an Amended Response. See
Doc. 24 (Resp.). Petitioner declined to file a reply.
See Doc. 26. This case is ripe for review.
raises one claim for relief. See Doc. 11 at 6. He
claims that the state failed to file formal charges within
thirty days of his arrest in violation of Florida Rule of
Criminal Procedure 3.134. According to Petitioner, he was
arrested on June 6, 2014, in Philadelphia, Pennsylvania, and
extradited to Jacksonville, Florida, and booked into the
pre-trial detention facility on July 4, 2014. He claims that
the state did not file formal charges until August 1, 2014,
fifty-six days after his arrest. He argues that pursuant to
Rule 3.134, he should have been released on his own
recognizance forty days after his arrest.
raised this claim in a “Petition for Writ of Habeas
Corpus” filed with the First District Court of Appeal.
Resp. Ex. F. The First DCA construed the petition as a motion
for postconviction relief filed under Florida Rule of
Criminal Procedure 3.850 and transferred the motion to the
trial court for consideration. Resp. Ex. G. The trial court
denied the claim, finding as follows:
A. The Defendant was arrested on June 6, 2014 in
Philadelphia, PA and extradited to Jacksonville, FL on July
B. The Defendant was charged by information on August 1, 2014
with Attempted Murder-Second Degree and Possession of a
Weapon or Ammunition by a Florida Delinquent Adult Felon.
C. The Defendant is claiming that the Information was filed
56 days after his arrest and that therefore he should be
released from custody.
D. The Defendant cites Rule 3.134 Fla. R. Crim. P.; however,
his interpretation of said Rule is misplaced.
E. The Defendant's remedy would have been to be released
from custody during the pendency of the case, not to be
relieved from serving his sentence.
F. The time to raise that issue has long since passed. The
Defendant was found guilty by a jury of his peers and
sentenced to 40 years Florida State Prison with 201 days
credit as to Count I and 15 years Florida State Prison
(Consecutive) as to Count II.
G. The Defendant appealed his case to the First District
Court Appeal where he had the opportunity to raise the
aforementioned issue, but apparently neglected to do so. The
District Court affirmed his conviction and a Mandate was
issued regarding same on April 28, 2016 . . . .
Resp. Ex. H. Petitioner attempted to seek an appeal of the
trial court's denial; however, when Petitioner failed to
comply with the First DCA's order directing him to file
an amended notice of appeal (Resp. Ex. I), the First DCA
dismissed the appeal (Resp. Ex. J). Respondents argue that
this claim is unexhausted and procedurally defaulted because